Motion in Limine to Preclude Hearsay or Other Indadmissible ...

MIL E S& S Toe K B RID G E P.C.
Dale P. Kelberman, Esquire
410-385-3608
dkelberman(fmilesstockbridge.com
October 30, 2009
VIA HAND-DELIVERY
Marian Soto, Criminal Clerk Manager
Circuit Cour for Baltimore City
Clarence M. Mitchell, Jr. Courhouse
100 N. Calvert St., Room 200
Baltimore, MD 21202
Re: State of Maryland v. Sheila A. Dixon
Case No. 109210015
Dear Ms. Soto:
Enclosed herewith please find Defendant's Motion in Limine to Preclude the State from
Referring to Hearsay, or Other Inadmissible Evidence in the Opening Statement and From
Introducing Such Inadmissible Evidence During Trial to be filed in the above-referenced case.
Thank you for your attention with respect to this matter.
Very
~.~ýitruly
yours,
Dale P. Kelberman
DPKJlf
Enclosure
cc: Hon. Dennis M. Sweeney
Robert A. Rohrbaugh, State Prosecutor
Thomas M. McDonough, Deputy State Prosecutor
Arold M. Weiner, Esquire
Client Documents:4823-6358-8613v i 106084-0000001 i 0/30/2009
10 Light Street, Baltimore, MD 21202-1487.410.727.6464. Fax: 410.385.3700 . www.milesstockbridge.com
Cambridge, MD . Columbia, MD . Easton, MD . Frederick, MD . McLean, VA . Rockvile, MD . Towson, MD

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
STATE OF MARYLAND *
v. *
CASE NO. 109210015
SHEILA ANN DIXON *
* * * * * * * * * * * * *
DEFENDANT'S MOTION IN LIMINE TO PRECLUDE THE STATE FROM
REFERRNG TO HEARSAY, OR OTHER INADMISSIBLE EVIDENCE IN OPENING
STATEMENT AND FROM INTRODUCING SUCH INADMISSIBLE EVIDENCE
DURING TRIAL
Defendant, Sheila Ann Dixon, by her undersigned counsel, respectfully moves this Court
to preclude the State from referrng to hearsay evidence, or making an improper argument, in its
opening statement or during the course of the trial, and in support of its motion submits the
following:
Over the course of the last couple of weeks, within days of the commencement of trial,
the State has suddenly produced additional discovery identifying several new witnesses and
voluminous additional documents which it intends to offer at triaL. Among other things, these
new witnesses include persons who were allegedly contacted by "someone at City Hall" who
offered them gift cards for the holidays. In several instances, the recipients are said to have
expressed disappointment with the donation.
This recent discovery material has prompted this Motion. It appears to the Defendant
that the State may seek to offer this hearsay, or refer to it during its opening statement. In
addition, the Defendant is concerned that the State may attempt to argue that these new witnesses
are among the category of "victims" of this offense, i.e. needy people who did not receive
additional gift cards.
Client Documents:4821- i 776- i 541 v i 106084-0000001 i 0/28/2009
1

It may be stating the obvious that hearsay is not admissible during triaL. Md. Rule 5-802.
For the same reason, hearsay should not be a par of an opening statement. In Wilhelm v. State,
272 Md. 404, 326 A.2d 707 (1974), Judge O'Donnell ariculated the scope and limitations of an
opening statement:
The primar purpose or office of an opening statement in a criminal prosecution is to
apprise with reasonable succinctness the trier of facts of the questions involved and what
the State or the defense expects to prove so as to prepare the trier of facts for the evidence
to be adduced. While the prosecutor should be allowed a reasonable latitude in his
opening statement he should be confned to statements based on facts that can be proved
and his opening statement should not include reference to facts which are plainly
inadmissible and which he cannot or wil not be permitted to prove, or which he in good
faith does not expect to prove. An opening statement by counsel is not evidence and
generally has no binding force or effect. To secure a reversal based on an opening
statement the accused is usually required to establish bad faith on the par of the
prosecutor in the statement of what the prosecutor expects to prove or establish
substantial prejudice resulting therefrom. (citations omitted)
( emphasis added).
In the witness interviews provided by the State on Friday, October 23, 2009, and more
recently, the Defendant has been provided with numerous instances of witnesses who are
claimed to have stated things such as "they spoke with someone in City Hall who told them
XXXXX." These statements are replete with hearsay, which does not fall within any exception
to that evidentiary rule. Such evidence could unfairly be used to taint the Defendant, by
suggesting that the Defendant knew about or directed whatever statement is offered.
In addition, the indictment in this case charges the Defendant with theft and
misappropriation, not from any "needy" persons, but from Ron Lipscomb and Patrick Turner.
The grand jury found and charged that it was the developers who were allegedly deceived or
misled. Consequently, the State should not be permitted to argue to the jury that any of these
witnesses were the "victims," as such an argument would be grossly improper. The Defendant
may not be tried or convicted of a crime with which she was not charged. Turner v. State, 242
Client Documents:482 1-1776- I 54 I vI IG6084-0000001 i 0/28/2009
2

Md. 408 (1966); Tapscott v. State, 106 Md. App. 109 (Md. App. 1995). Therefore, any
argument to the jury advancing such a theory is improper and should not be permitted.
The Defendant therefore requests that the Cour preclude the State from making reference
in its opening statement, or during tral, to any inadmissible hearsay, or to suggest that these
newly disclosed witnesses were the "victims" of the offenses charged.
Respectfully submitted,
Ai\ lh. ~J 'U nv fr
Arold M. Weiner
Bar L. Gogel
Norman L. Smith
Jeffrey E. Nusinov
LAW OFFICES OF ARNOLD M. WEINER
2002 Clipper Park Road, Suite 108
Baltimore, Marland 21211
(410)
9l~
769-8080
Dale P. Kelberman
Donald E. English
MILES & STOCKBRIDGE, P.C.
10 Light Street
Baltimore, Marland 21202-1487
(410) 727-6464
1Alt~ ?h~~lll
Melissa Phinn
Law Office of Melissa Phinn
10 N. Calvert Street, Suite 142
Baltimore, Marland 21202
(410) 244-0850
Attorneys for Defendant
Client Documents:482 I - 1776- i 54 i v i IG6084-0000001 10/28/2009
3

CERTIFICATE OF SERVICE
I HEREBY certify that on this 30th day of October, 2009, copies of the foregoing
Defendant's Motion In Limine To Preclude The State From Referrng To Hearsay In Opening
Statement Or During Trial was sent, via email and first class mail, postage prepaid, to:
Robert A. Rohrbaugh, State Prosecutor
Thomas M. McDonough, Deputy State Prosecutor
300 E. Joppa Road, Suite 410
Towson, Maryland 21286
Q~r: \~n~tr
Dale P. Kelberman
Client Documents:4821- i 776- i 54 i v i IG6084-0000001 i 0/28/2009
4